The "Safe Harbor" Provisions of the DMCA Become Safer and More Harbory.
Two recent decisions have provided context for the DMCA's "safe harbor" provisions and have given
an expansive reading to such provisions.
In the Ninth Circuit Court of Appeals, the decision in a case called UMG v. Veoh (even though there are dozens of parties) has affirmed a district court's decision that a video sharing site (Veoh) qualified for the safe harbor provisions and therefore was not liable for copyright infringement. This case was decided on December 20, 2011.
In the Southern District of New York, summary judgment was entered for Photobucket.com and the Kodak Imaging Network against Sheila Wolk, an artist that claimed that Photobucket was liable because several of her works had appeared on Photobucket. For example, see here for examples on the day this post was written. The case is styled Wolk v. Photobucket and was decided on December 21, 2011.
In UMG v. Veoh, Veoh allows people to share video content over the internet. The service is free and Veoh makes its money through related advertising.
The Digital Millennium Copyright Act ("DMCA") allows "service providers" "safe harbor protection" if the service provider: (i) does not have actual knowledge that the material on the system is infringing; (ii) is not aware of facts or circumstances from which infringing activities are apparent; (iii) upon obtaining actual knowledge acts expeditiously to remove or disable access to such infringing material; or (iv) does not receive a financial benefit in cases where the service provider has the right and ability to control such activity.
Veoh employed the standard methods of having its customers agree not to upload any infringing material and the customers give Veoh a license to use and display such material. When a video is uploaded, the software resident at Veoh's site automatically (i.e. without human intervention), breaks the video into 256 kilobytes chunks that facilitates streaming and converts the video into Flash 7 format. If the customer is a "Pro" user, the software further converts the files to Flash 8 and MPEG-4 formats. The software also extracts metadata to aid in the search function for the videos. No Veoh employees review videos before they are posted.
However, Veoh uses “hash filtering” software. When Veoh is aware of an infringing video and disables access to it, the hash filtering software automatically disables access to any identical video and prohibits any subsequently submitted duplicates. Veoh also used another filtering system that compares audio on a video to a database of copyright content and if it finds a match, the video never becomes available for viewing. After obtaining this software, Veoh applied it to their catalog of previously uploaded videos and as a result, removed more than 60,000 videos, including some that supposedly infringed on UMG’s copyrights. Despite the precautions, UMG and Veoh agree that some UMG copyrighted material is on Veoh’s site. The parties also agree that UMG never gave Veoh notice of any infringing material before UMG filed this suit.
Veoh asserted as an affirmative defense that it was entitled to protection under the safe harbor provisions of the DMCA. UMG alleged that Veoh was not entitled to such safe harbor because its activities were not “infringement of copyright by reason of the storage [of material] at the direction of a user”, that Veoh had actual knowledge of infringing acts or was “aware of facts or circumstances from which infringing activity [wa]s apparent and that Veoh “receive[d] a financial benefit directly attributable to …infringing activity” that it had the right and ability to control.
The court disagreed with UMG on all three issues.
UMG had asserted that the language required that the infringing conduct be limited to storage and that Veoh’s facilitation of access to the material went beyond “storage”. The court said the statute language was “by reason of storage” and that the language was clearly designed to cover more than “mere electronic storage lockers”. The court reasoned that if Congress had intended the safe harbor to extend only to web hosts, it would not have included the language “by reason of storage”.
The court followed a line of other cases that said that just because a defendant had been notified of some infringing activities that this put it on notice for other infringing activities. It was undisputed that Veoh removed all material for which it was put on notice and that it could identify from such notices, even though UMG had not provided any such notices.
The court further stated that the “right and ability to control” requires control over specific infringing activity that the provider knows about. “A service provider’s general right and ability to remove materials from its services is, alone, insufficient. Of course, a service provider cannot willfully bury its head in the sand to avoid obtaining such specific knowledge.” The court found that Veoh had not acted in such manner.
In the Wolk v. Photobucket case, Ms. Wolk is an artist that depends on her paintings and sculptures as her sole source of income. She alleges that Photobucket facilitates the infringing of her copyrights and is not entitled to the protections of the safe harbor.
In its analysis, the court found that Photobucket met the definition of a service provider because the court believed that the definition of service provider includes a “broad set of Internet activities”. Photobucket also had a policy that allowed copyright holders to submit a takedown notice, had made that policy available on its website and had acted to remove infringing material when given notice. It also found that Photobucket met the other requirements for safe harbor and dismissed Ms. Wolk’s pro se complaint.
Both of these cases allowed immunity from activities that go substantially beyond the mere storage of materials. Decisions of this type, which most likely accurately apply the legislative intent of the DMCA, would probably come down differently under the recently proposed SOPA legislation.
This will not be the last we’ve heard of these issues.
Facebook moved for default judgment. 
another case where anonymity is sought comes through the Northern District of California. In 
consequently, could be prevented by Autodesk.
Hart was a college football player that played for Rutgers. EA Sports incorporated Mr. Hart's likeness into several versions of its video games, including 
long and detailed decision
downloaded Oracle software thousands of time in an effort to get the software cheaply (free) and obtain some of Oracle's customers. Oracle sued and SAP did not contest the fact of the downloads but alleged that the damages to Oracle should be equal to the profits that Oracle would have realized from the pirated software. The Court allowed the jury to find damages based on a "hypothetical license" that would have existed between Oracle and SAP if Oracle allowed SAP to use the software in question. This allowed the jury to find damages in the amount of $1.3 billion, the largest copyright infringement verdict in history. However, 
will be ordered.
Boop" character was a "functional aesthetic component" of a product upon which it was printed and therefore, like .png)
we have been talking about lately, unless you are the one depending on trade secret protection. 
which allowed you to view streamed videos from the cloud via a DVD that you rent played on a DVD player that you rent. Of course, you never see or possess either, given that they reside somewhere in a Zediva leased data center.
of videos, since there is no "sale" involved. We surmised that this would increase costs because Netflix would have to license the videos from the copyright holders rather than just buy the DVD and rent it out.
stream the video over the internet to the subscriber's device. So, according to Zediva, it is like renting the DVD and player and the player just has a really long cord (with the cord serving as a metaphor for the cloud). Surely, says Zediva, that must be allowed under the "first sale" doctrine. If DVD copyright holders take umbrage at this arrangement, they might say that the "first sale" doctrine requires physical transfer of the medium and "Don't call me Shirley". (gratuitous Leslie Nielsen homage)
intellectual property attorneys, a hypothesis not yet proven) would read the title of this post essentially as follows: Blah, blah, blah, Betty Boop, blah, blah, blah, blah.
Department of Commerce and others.
plaintiff here, Allvoice, was an U.K. company with an office in the Eastern District of Texas but with no employees there or anywhere in the U.S. Calls there were transferred to their office in the U..K. Allvoice was incorporated in Texas but had done so 16 days before the suit was filed. Forum shop much? 
programmers to try to promote the sale, play and mention of such CDs. UMG does not charge for the CDs but it does put notices on the CDs. 
buy a large number of DVDs of a particular title from the distributor, usually at at discounted price and mail them out to subscribers. Netflix could do this free of any copyright claims because of the First Sale Doctrine. Netflix also was quick to recognize the utility and convenience of providing such material in the form of streaming video through Roku, XBox and other platforms. The problem arises in that .jpg)
he U.S. at a discount, imported them and began selling them at a price lower than Omega sells them domestically. Omega sued Costco alleging copyright infringement. Costco replied that they were not copyrightable and even if they were, the First Sale Doctrine applied. Omega said, "Not so fast, Costco" (or words to that effect), "there is an image of a globe on the back of each watch that is half a centimeter in diameter and that gives us copyright rights". Costco, in a haughty rejoinder, said "Well, so's your Mom and we can do this because of the First Sale Doctrine" (I made up the Mom part). Omega then pointed out that the Copyright Law states in pertinent part that the First Sale Doctrine set out in the copyright act applies only to copies "lawfully made under this title" [Section 109(a)]. Omega said since the watches were made outside the U.S. they were not "made under this title" and hence no First Sale Doctrine. 
M contained a software program that was licensed and not sold, then the First Sale Doctrine also does not apply and resale of the used discs can be prevented under the copyright provisions. The case was Vernor vs. Autodesk and .jpg)
Trademarks allow a company to easily distinguish itself in the marketplace in the minds of consumers. A well known trademark is often one of a company's biggest assets. Trademark law gives a company the exclusive right to use a distinctive mark used to identify its goods or services. It allows for a company to develop a brand in the marketplace without fear that another company will cause a "likelihood of confusion" by using a similar mark. Trademarks do have "common law" protection under federal law and the law of most states; meaning that you do not have to register to have protection. But registering your distinctive mark at the federal and state level provides a number of benefits. Registering serves as constructive notice that your mark is in use, it makes it easier to prove your case in court, and it gives you protection in a far greater area. Prior to registration, the mark should be followed by "TM" for trademarks and "SM" for service marks.
Copyright law protects original works of authorship fixed in a tangible medium of expression. Obviously, this includes many areas: literary works, musical works, dramatic works, photos, paintings, sculptures, architectural works to name a few. Business that don't produce these types of works should still consider whether they have copyrightable material. Marketing materials, training materials, or other works that the business creates during its operations could potentially be copyrightable.
